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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Sales Tax Revision Petition No.856/2000.
(A.C.T.O., Flying Squad Vs. M/s Derby Textile Pvt. Ltd.)
DATE OF ORDER : April 28th, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Reportable :
Mr. Vineet Kumar Mathur for the petitioner.
Mr. Avinash Acharya for the respondent.
BY THE COURT :
By this revision petition, the Assistant Commercial
Taxes Officer, Flying Squad, Jodhpur is challenging the
judgment passed by the Rajasthan Tax Board, Ajmer dated
10.05.2000 in Appeal No.92/97/ST/Jodhpur, so also, the
order passed by the Deputy Commissioner (Appeals) dated
02.09.1996, whereby, the learned Tax Board, Ajmer
upheld the order passed by the Deputy Commissioner
(Appeals) dated 02.09.1996, whereby, the said authority
quashed and set aside the order passed by the Assessing
Authority dated 03.02.1995 by which penalty of
Rs.15,600/- was imposed upon the respondent company.
Brief facts of the case are that the goods in question
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was travelling in truck No.GJ-9/T – 5438 from Bombay to
Jodhpur and it was carrying 10 electric motors. At the
time of checking physical verification was made by the
Assistant Commercial Taxes Officer, Flying Squad, Jodhpur
and it was found that the goods were not accompanied by
bill or bilty of the goods carried in the vehicle nor it was
shown in the monetary form ST 18A. In such
circumstances, a show-cause notice was issued by the
assessing authority to which reply was filed by the non-
petitioner assessee; but, it was not found satisfactory,
therefore, the assessing authority imposed penalty as
indicated above under Section 22-A (7) of the Act of 1954.
Against aforesaid order passed by the Assessing
Authority, the assessee preferred appeal before the Deputy
Commissioner (Appeals), Jodhpur which came to be
decided on 02.09.1996, in which, it was held that there
was no mens rea on the part of the assessee for evading
tax liability. The Deputy Commissioner (Appeals),
Jodhpur set aside the order passed by the Assessing
Authority vide judgment dated 02.09.1996. Thereafter,
being aggrieved by the judgment dated 02.09.1996,
second appeal was preferred by the department before the
learned Tax Board, Ajmer. Learned Tax Board, Ajmer
upheld the order passed by the first appellate authority.
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Hence, this revision petition.
While challenging both the orders, learned counsel
for the petitioner vehemently argued that both the orders
passed by the authorities below speak that there is no
examination of the matter in its entirety and objectivity.
The relevant material on record has altogether been
ignored which is evident from the fact that documentary
report and reply submitted by the respondent company, it
was manifestly clear that the goods in transit were not
accompanied by the requisite documents as required under
Section 22A of the Act of 1954 at the time of physical
verification of the goods. Therefore, the Assessing
Authority imposed the penalty which is in accordance with
Section 22A of the Act of 1954.
Further, it is argued that the authorities below have
seriously erred in interfering with the order passed by the
Assessing Authority because no reasons for interfering with
the order passed by the Assessing Authority have been
incorporated in the order. Likewise, the learned Tax
Board has committed serious error which is apparent on
the face of record that the finding of fact arrived at by the
Assessing Authority has not been considered properly.
Therefore, the orders passed by both the authorities below
are perverse and illegal and are liable to be quashed.
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Per contra, learned counsel for the respondent
vehemently argued that the facts stated in the revision
petition are far from truth because upon perusal of the
order passed by the Assessing Authority itself it is obvious
that after physical verification the bill and bilty of 10
electric motors were produced and there is requirement of
provisions of law to submit form ST 18A. Learned counsel
for the respondent has invited my attention towards Rule
62A (3) of the Rules of 1955. It is submitted by learned
counsel for the respondent that the respondent is
manufacturer of cotton thread and, for the purpose of
manufacture/production of cotton thread, these electric
motors were purchased for generating electricity. For
such type of commodity, as per Rule 62A (3) of the Rules
of 1955, there is no requirement of declaration form ST
18A. The said commodity which is electric motors were
purchased by the respondent for the purpose of
manufacture/production and not for sale.
As per learned counsel for the respondent, the
contention of the respondent dealer was accepted by the
Deputy Commissioner (Appeals) on the ground that at the
time of physical verification though the said bilty was not
produced before the check-post but, at the time of
inspection, it was produced; meaning thereby, there was
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no intention to evade the tax liability. Learned counsel for
the respondent contended that the second appellate
authority has also upheld the order passed by the Deputy
Commissioner (Appeals) dated 02.09.1996, in which, there
is no illegality and concurrent and concurrent finding of
fact does not require any interference. Learned counsel
for the respondent also argued that for a meagre amount
of Rs.15,600/- this revision petition has been filed by the
revenue which is not justifiable.
I have carefully considered the rival submissions and
perused the relevant provisions of law.
Proviso to Rule 62A (3) reads as follows :
“Provided that Form S.T. 18A need not to be
furnished if the goods are goods of the class
or classes specified in the certificate of
registration under the C.S.T. Act, 1956 of the
registered dealer purchasing the goods as
being intended for use by him in the
manufacture or processing of goods for sale
or in mining or in the generation or
distribution of electricity or any other form of
power.”
Upon perusal of the above provision, I am of the opinion
that no error has been committed by both the authorities
below while setting aside the order passed by the
Assessing Authority because, at the time of of physical
verification, bill and bilty of 10 electric motors were
produced for perusal and according to proviso to Rule 62A
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(3), for the goods which is purchased for production there
was no requirement of declaration form ST 18A. In this
view of the matter, it is obvious from the facts of the
present case that electric motors were purchased and were
in transit for the purpose of generating electricity for
manufacturing thread, therefore, there is no illegality in
the orders impugned which may give rise to any question
of law to be decided by this Court. Moreover, the question
of mens rea is totally irrelevant in this case.
In that view of the matter, the judgments cited by
learned counsel for the petitioner, reported in Tax Up-Date
Vol. 22 Pt V, (2009)1 SCC 308 and (2007) 7 SCC are not
applicable in this case because, here in this case, both the
authorities below set aside the order passed by the
Assessing Authority for the reason that goods purchased
were required by the respondent dealer for generating
electricity to manufacture thread and there is exemption
provided under proviso to Rule 62A (3), therefore, in this
matter there was no requirement of declaration form ST
18A.
Hence, this sales tax revision petition is dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.